Senator Therese Terlaje, the chairwoman of the Legislature’s health committee, plans to review the island’s mandatory malpractice arbitration law which has not been updated for more than three decades.
The review was spurred by the case of David Lubofsky who has sued the Guam Memorial Hospital for the death of his 5-year-old son Asher, accusing GMH of neglect and failing to properly diagnose, monitor and treat the boy’s medical condition.
In a letter to Speaker Tina Muna-Barnes, Terlaje said it is reasonable that after 35 years the mandatory malpractice arbitration law should be due for a careful review by physicians, attorneys, patients and other stakeholders to ensure that all patients can obtain quality care.
The senator said she is committed to finding a way to examine Guam’s mandatory medical arbitration law on Guam, in particular Lubofsky’s concern that the costs of arbitration are prohibitive for plaintiffs or claimants.
According to Terlaje, her preliminary research of laws across the United States indicates that there is no consensus on the issue. On the one hand, there is some analysis that indicates arbitration benefits claimants like Mr. Lubofsky more than defendants, and that there are ways to address the costs. For example, the American Arbitration Association may offer waivers or reduced fees upon application, and alternate providers of arbitration services, such as Dispute Prevention & Resolution (DPR) in Honolulu, are less expensive.
On the other hand, Terlaje said much of the tort reform across the nation has benefitted the defendants or physicians, to include caps on awards when claimants are allowed to go straight to court.
“I have also found that other legislative health committees previously examined Guam’s arbitration law but those reports are not available to explain their findings or conclusion to not to proceed with amendment or repeal. I was not yet able to confirm Mr. Lubofsky’s assertion that Guam has more doctors per capita practicing with malpractice histories than anywhere in the nation,” Terlaje said.
According to the senator, the Guam Bar Association has already compiled a list of attorneys with experience on both sides of these types of cases who are interested in helping the Guam Legislature reexamine the impacts of the arbitration law or potential amendments to it.
“I look forward to discussions with Guam medical professionals in regards to the law and the costs of arbitration. Mr. Lubofsky’s efforts have helped to spur this discussion and I sincerely thank him,” Terlaje said.